Meadows v. Anchor Longwall & Rebuild, Inc. , 306 F. App'x 781 ( 2009 )

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
1-13-2009
Meadows v. Anchor Longwall
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-2580
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-2580
DONALD E. MEADOWS, JR.;
AMANDA MEADOWS, husband and wife
v.
ANCHOR LONGWALL AND REBUILD, INC.,
a West Virginia corporation
v.
LEWIS-GOETZ CO. INC., successor-in-interest
of Gooding & Shields Rubber Co.;
SYSTEM STECKO, a Division of Dayco Europe, Ltd.
Third Party Defendants
Donald E. Meadows, Jr.,
Amanda Meadows,
Appellants
On Appeal from the United States District Court
For the Western District of Pennsylvania
(D.C. Civil No. 02-cv-02062)
District Judge: The Honorable Katharine S. Hayden
Magistrate Judge: The Honorable Amy Reynolds Hay
Argued December 2, 2008
Before: AMBRO and GREENBERG, Circuit Judges,
and O’NEILL,* District Judge
(Filed January 13, 2009 )
Richard J. Schubert, Esquire (Argued)
AlpernSchubert P.C.
330 Grant Street
2727 Grant Building
Pittsburgh, PA 15219-0000
Counsel for Appellants
Kathleen S. McAllister, Esquire (Argued)
DiBella, Geer, McAllister & Best
312 Boulevard of the Allies, 3rd Floor
Pittsburgh, PA 15222-0000
Counsel for Appellees
Stanley A. Winikoff, Esquire (Argued)
Michael C. Hamilton, Esquire
Winikoff Associates, 13th Floor
Four Gateway Center
Pittsburgh, PA 15222-0000
Counsel for Third-Party Appellees
OPINION
O’NEILL, District Judge
Appellants Donald E. Meadows, Jr. and Amanda Meadows appeal the final
*
The Honorable Thomas N. O’Neill, Jr., United States District Judge for the
Eastern District of Pennsylvania, sitting by designation.
2
judgment entered by the District Court1 in favor of appellee Anchor Longwall and
Rebuild, Inc. (Anchor). Appellants contend the District Court erred in its May 3, 2007
final order excluding appellants’ expert witness’ testimony. Appellants also challenge the
District Court’s grant of Anchor’s motion for partial summary judgment dismissing
appellants’ claims for strict liability against Anchor under Restatement (Second) of Torts
§ 402A. Finally, appellants challenge the District Court’s sua sponte grant of summary
judgment in favor of third-party defendant System Stecko as to Anchor’s claim of
contribution against Stecko. For the following reasons, we will affirm the District
Court’s orders.
I.
Because we write only for the parties, our factual summary is brief. Appellants
filed a civil complaint on November 29, 2002, asserting claims against appellee Anchor
for strict liability, negligence, breach of warranty, emotional distress and loss of
consortium for Meadows’ injuries that occurred while pressurizing a mine shield against
the roof of the Maple Creek Mines where he was employed. Appellants allege that a
shut-off valve fitting replaced by Anchor during a refurbishing project malfunctioned,
pulled loose from the valve assembly housing due to the pressure of the hydraulic fluid,
and struck Meadows on the right side of his face. As a result of the accident, Meadows
1
By consent of the parties, Magistrate Judge Hay conducted all proceedings in this
case as provided for by the 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73.
3
lost use of his right eye.
The accident occurred on December 6, 2000 while Meadows was installing 800-
ton longwall shields originally manufactured and designed by Meco-Dowty in the Mine.
Meadows was employed by the Mine as a longwall helper/longwall utility man.
Longwall shields are placed in succession and after each shield is in place its leg jacks
(hydraulic lift cylinders) are pressurized to raise the canopy of the shield to the mine roof.
Meadows was engaged in manually pressurizing a shield, likely the shield known as
Longwall International 045 (Shield # 45), which required him to stand close to the
hydraulic system when a shut-off valve fitting pulled loose from the valve assembly
housing and struck him in the face.
Shortly before the accident, the Mine contracted with Montgomery Equipment
Company to repair approximately 189 of its longwall shields. Montgomery subcontracted
with several repair companies, including Anchor, to refurbish and/or repair the shields.
Anchor repaired 39 of the 189 longwall shields repaired for the Mine, including Shield #
45, which discovery revealed was likely the shield on which Meadows was working at the
time of his accident. As part of the repair and refurbishment project, Anchor replaced
hoses and valves and installed new hose kits, including Stecko valves of a type that
Meadows alleges caused his injury. Anchor’s paperwork revealed that Shield # 45 was
missing a base lift jack at the time it was received and that the Mine elected not to replace
it.
4
Appellants hired Mark A. Sokalski, P.E., to investigate the cause of the valve
malfunction and testify as an expert witness as to liability and causation. Sokalski
testified in his deposition that the accident occurred when Meadows started “using
manual levers . . . he ended up a little out of sequence when he was doing it manually and
left the ram bar down,” which created a “spike” in the pressure that over-pressurized a
defective valve. Sokalski testified that the valve “exploded” because Anchor omitted a
check valve when it refurbished the shield that was part of the original shield design and
would have relieved the over-pressurization. In hydraulic systems, the check valve is a
safety feature built into the device to sense and relieve excessive pressure by allowing the
over-pressurized fluid to flow back into the system to a relief valve, which is another
safety device on the system. After examining a number of Stecko valves, Sokalski found
that the threads of the male and female connections of the valve were incorrectly cut,
rendering the valve subject to failure at pressures below its expected failure pressure.
Though he admitted that he could not replicate the exact conditions of the mine shield’s
hydraulic system when it failed in his testing , he testified that, using principles of
physics, a pressure spike was caused in the hydraulic fluid within the shield system that
contributed to the failure of the Stecko valve.
Invoking the District Court’s diversity jurisdiction, appellants filed, on November
29, 2002, a multi-count complaint against Anchor alleging negligence and strict liability
under the Restatement (Second) of Torts § 402A. Once discovery showed that the shield
5
in question was likely Shield # 45, Anchor filed a third-party complaint joining Lewis
Goetz and Company and Stecko, respectively the supplier and the manufacturer of the
valve in question, seeking indemnity/and or contribution. The District Court granted
Lewis-Goetz’s unopposed motion for summary judgment because no party could prove
that the valve in appellants’ counsel’s custody was supplied by Lewis-Goetz.
Anchor then filed a motion for partial summary judgment with regard to
appellants’ strict liability claim which the District Court granted on April 17, 2006 on the
basis that Anchor did not sell or supply a product but rather provided a service which is
not subject to strict liability claims. On August 28, 2006, the Court granted Stecko’s
motion for partial summary judgment with regard to any claim of Anchor against Stecko
for indemnity, finding that none of the theories of liability Anchor asserted against Stecko
would support such a claim. Next, on January 5, 2007 the Court sua sponte granted
summary judgment as to any claims for contribution by Anchor against Stecko, finding
that no evidence identified by Anchor supported a claim for strict liability against Stecko.
Appellants’ negligence claim against Anchor was the only remaining claim. After
the close of discovery, Anchor filed a motion in limine to exclude the testimony of
appellants’ only expert on liability and causation, Sokalski. After a hearing on February
1, 2007, the District Court made a determination that the proposed testimony did not meet
the requirements for expert testimony under Federal Rule of Evidence 702 and the factors
outlined by the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
6
U.S. 579, 589 (1993), because it was insufficient, not based on an appropriate foundation,
and inadequately tied to the facts of the case. After excluding Sokalski’s testimony, the
District Court granted final judgment in favor of Anchor on May 3, 2007. Appellants
filed a timely notice of appeal on May 23, 2007.
II.
The District Court had jurisdiction over this diversity action under 28 U.S.C. §
1332. We have jurisdiction over the final orders of the District Court pursuant to 28
U.S.C. § 1291.
We exercise plenary review over the District Court’s decision to grant summary
judgment. NBT Bank Nat’l Assoc. v. First Nat’l Comm. Bank, 393 F.3d 404, 409 (3d
Cir. 2004). “Affirming the grant of summary judgment is proper where there are no
genuine issues of material fact and the moving party is entitled to judgment as a matter of
law.” Id. (citation omitted). We resolve all factual doubts and draw all reasonable
inferences in favor of the nonmoving party. See DL Res. Inc. v. FirstEnergy Solutions
Corp., 506 F.3d 209, 216 (3d Cir. 2007).
In reviewing the exclusion of expert testimony under Daubert, we must determine
whether the District Court abused its discretion. Pineda v. Ford Motor Co., 520 F.3d 237,
243 (3d Cir. 2008). “An abuse of discretion arises when the District Court's decision rests
upon a clearly erroneous finding of fact, an errant conclusion of law or an improper
application of law to fact.” In re TMI Litig., 193 F.3d 613, 666 (3d Cir. 1999) (internal
7
quotation marks omitted). This Court does not interfere with the District Court's decision
“unless there is a definite and firm conviction that the [District Court] committed a clear
error of judgment in the conclusion it reached upon a weighing of the relevant factors.”
Id. (internal quotation marks omitted). To the extent that the District Court's decision
involved a legal interpretation of the Rules of Evidence, the review is plenary. See id.
III.
A. Strict Liability Claim
The District Court properly granted summary judgment on appellant’s claim for
strict liability against Anchor, finding that Anchor serviced but did not manufacture or
redesign the allegedly defective product. Meadows’ complaint, inter alia, alleged that
Anchor was liable on a theory of strict liability under the Restatement (Second) of Torts §
402A. Specifically, Meadows alleged that Anchor did not engage solely in servicing the
longwall shield that caused his injury but defectively redesigned, refurbished, re-
manufactured and reconditioned it. The District Court granted summary judgment in
favor of Anchor and found that § 402A does not apply to a defendant such as Anchor who
neither sold nor manufactured the allegedly defective valve.
Restatement (Second) of Torts § 402A states that:
(1) One who sells any product in a defective condition unreasonably
dangerous to the seller or consumer or to his property is subject to liability
for physical harm thereby caused to the ultimate user or consumer, or to his
property, if
(a) the seller is engaged in the business of selling such a product,
and
8
(b) it is expected to and does reach the user or consumer without
substantial change in the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and
sale of his product, and
(b) the user or consumer has not bought the product from or
entered into any contractual relation with the seller.
Pennsylvania adopted this provision in Webb v. Zern, 220 A.2d 853 (1966). Comment f
to Section 402A further explains that the section “applies to any manufacturer of such a
product, to any wholesale or retail dealer or distributor . . . . It is not necessary that the
seller be engaged solely in the business of selling such products.” See also Malloy v.
Doty Conveyor, 820 F. Supp. 217, 220 (E.D. Pa. 1993), quoting Burch v. Sears, Roebuck
& Co., 467 A.2d 615, 621 (Pa. Super. Ct. 1983), noting that a “seller” includes “all
suppliers of a defective product in the chain of distribution, whether retailers, partmakers,
assemblers, owners, sellers, lessors or any other relevant category.” See also Salvador v.
Atlantic Steel Boiler Co., 307 A.2d 398 (Pa. Super. Ct. 1973), noting that a manufacturer
of a defective product is liable under 402A regardless of whether the manufacturer is
involved in the item’s sale.
Service providers have long been excluded from strict liability. See La Rossa v.
Scientific Design Co., 402 F.2d 937, 942-43 (3d Cir. 1968) (interpreting New Jersey law
and holding that, unlike mass produced goods, services are not marketed to a wide variety
of the general public, so parties injured by poor services are in a better position to locate
the tortfeasor and identify the defect caused by the tortfeasor's negligence); Lemley v. J &
9
B Tire Co., 426 F. Supp. 1378, 1379-80 (W.D. Pa. 1977) (noting that there had been no
expansion of Section 402A to include persons who supply a service).
Appellants argue that the District Court erred in determining that Anchor was not a
manufacturer or seller of a product under § 402A because they allege that Anchor, in
repairing and refurbishing the longwall shields, “redesigned” the hydraulic system and
“sold” the redesigned system back to the Mine. Appellants point to the deposition
testimony of the chief engineer at Anchor at the time of the longwall shield repair project,
Edmond Groff that he made changes to the circuit or hydraulic drawings of Shield # 45 as
evidence that his drawings constituted a modification of the original manufacturer’s
drawings of the hydraulic system. Appellants argue that Anchor performed a design
function by modifying the original manufacturer’s drawings and therefore engaged in an
act that put itself in a position of a manufacturer. Anchor contends that, while Groff
made a drawing of the hydraulic system, the hydraulic system was designed by the
original equipment manufacturer, Meco-Dowty, and that any changes or modifications to
the system were specifically requested and approved by the Mine. Anchor argues and
presented evidence that it did not manufacture, purchase, sell or supply the shield at issue
or the allegedly faulty valve that caused the injuries but merely attached the component to
the shield unaltered from the way it was received from the manufacturer, appellee Stecko,
and that the shields themselves were at all times owned by the Mine.
Pennsylvania law does recognize strict liability for a manufacturer of a product
10
regardless of whether the manufacturer was involved in the sale. See Webb v. Zern, 220
A.2d 853 (Pa. 1966). But adopting Meadows’ theory that, by refurbishing and repairing
the longwall shield, Anchor “redesigned,” manufactured and sold a product to the Mine
would effectively swallow the distinction between sellers of products and those that
simply provide a service for the products after manufacturing. From the evidence in the
record, Anchor did not hold itself out to be the seller of products such as valves or
longwall shields. No evidence was presented to contradict that any changes in the
drawings at issue were made at the request of the Mine and ultimately approved by the
Mine. Further, no evidence was presented to contradict that the parts that Anchor used in
refurbishing and repairing the shields were purchased in cooperation with the Mine.
Appellants also claim that Anchor is a “seller” under Section 402A because it
played a role in requesting additional parts. However, this claim fails because any such
requests by Anchor were merely incidental to servicing the shields as specified by the
Mine and appellants have presented no evidence that the parts requested are the allegedly
defective products at issue here. Finally, there is no evidence that Anchor was paid for
any alleged redesign by the Mine as part of the repair project. Appellants provide no case
law to support their theory that repairing and refurbishing constitutes “re-manufacturing”
and “re-designing” under Pennsylvania law.2 Anchor provided a service: the repair and
2
Appellants also attempt to get around the seller distinction by arguing that Anchor
was a bailee of the longwall shield and that bailment can give rise to a claim under §
402A. See Berkbile v. Brantly Helicopter Corp., 337 A.2d 893, 898 n.3 (Pa. 1975).
Appellants cite Kalumetals, Inc. v. Hitachi, 21 F. Supp. 2d 510 (W.D. Pa. 1998), for
11
refurbishment of 39 of the Mines’ longwall shields. We decline to hold that in repairing a
longwall shield Anchor was involved in “re-designing” or “re-manufacturing.”
The public policy considerations underlying strict liability also argue against
holding that Anchor was a “seller” of products. The controlling question in whether
someone qualifies as a seller, as Pennsylvania courts have pointed out, is the relationship
between the defective product and the overall chain of distribution. See Frey v. Harley
Davidson Motor Co., 734 A.2d 1, 17 (Pa. Super. Ct. 1999). The Pennsylvania Supreme
Court has followed a four-part test in determining whether public policy requires the
imposition of strict liability on a supplier of an allegedly defective product: (1) whether
defendant is the only member of the marketing chain available to injured plaintiff; (2)
whether the imposition of strict liability would serve as an incentive to safety; (3) whether
defendant is in a better position than the consumer to prevent the circulation of defective
products; and (4) whether defendant can distribute the cost of compensating for injuries
resulting from defective products by charging for it in its business. Francioni v. Gibsonia
Truck Corp., 372 A.2d 736, 739-40 (Pa. 1977).
support that § 402A applies in a bailment relationship. However, the Kalumetals analogy
would apply only if an Anchor employee had been injured while working on a defective
longwall shield. We fail to see how Kalumetals applies to Meadows’ accident. Once the
longwall shields were returned to the Mine, the bailer/bailee relationship terminated. See
American Enka Co. v. Wicaco Mach. Corp., 686 F.2d 1050, 1053 (3d Cir. 1982), holding
that “[a] bailment is a delivery or deposit of personalty under an implied or express
agreement that at the termination of the bailment the personalty will be redelivered to the
bailor, otherwise dealt with according to the bailor's directions, or kept until the bailor
reclaims it.”
12
First, as Anchor points out, appellants could have sued Meco-Dowty, the
manufacturer of the longwall shield, or Stecko, the manufacturer of the allegedly
defective valve. Second, imposing liability on Anchor would not serve as an incentive to
safety since Anchor is not in the business of building, designing or manufacturing the
shields or valves and therefore does not have control over the safety of the products.
Similarly, Anchor is in no better position than the consumer to influence the
manufacturing of safer mining products or prevent circulation of defective mining
products because it acquired the products from the consumer for repair and was not in the
original or direct chain of distribution. Anchor repaired only 39 of the Mine’s shields; it
was not mass producing the shields and valves. Finally, although Anchor could charge
extra for its services to cover the potential cost of compensation for injuries, it ought not
be required to distribute the cost of defects in products it did not design or manufacture.
Thus, the District Court properly granted summary judgment on the strict liability
claim, as Meadows’ allegations involved Anchor’s service activities as a repairer rather
than as a “seller” and such a claim sounds in negligence. See La Rossa, 402 F.2d at 942-
43; Lemley, 426 F. Supp. at 1379-80.
B. Exclusion of Expert Witness Testimony
The District Court did not abuse its discretion in excluding the testimony of
appellants’ expert witness, Sokalski. His testimony was Meadows’ sole evidence of
negligence. The Court found that Sokalski’s testimony was not reliable under Rule 702
13
and so excluded his testimony and granted final judgment in favor of Anchor because the
negligence claim was the only claim remaining after the Court granted Anchor’s motion
for partial summary judgment on strict liability.
Sokalski’s opinion is based on several conclusions. First, Sokalski testified that
the Stecko valve that struck Meadows in the eye was defective because its male threads
were over-cut, which reduced its ability to fully and tightly grip the female threads,
thereby reducing the burst pressure to approximately one-half of its published design.
Second, Sokalski concluded that the mine’s hydraulic system, which normally operates at
between 1700 pounds per square inch (“psi”) and 3200 psi, experienced a “spike” in
pressure exceeding 100,000 psi on the Stecko valve. Third, Sokalski concluded that the
spike was generated due to the ram bar on the shield being in the “down” position.
Fourth, Sokalski concluded that there was no check valve between the two hoses that
would have connected into the valve assembly and would have prevented the pressure
spike. Lastly, he concluded that because the ball in the allegedly malfunctioning valve
was “ovalled” and dented, extremely high pressure occurred there. Essentially, Sokalski
alleged two defects in the shield after Anchor’s repairs were completed that caused the
accident: the presence of the ram bar in the down position that generated the spike in
pressure and the absence of a check valve that would have prevented the valve from
separating when the alleged spike occurred.
Sokalski testified regarding the tests he used to reach his conclusions. He
14
purchased three Stecko ball valves from the lot that was the source of the allegedly
defective valve. He then connected the valves to a metal pipe filed with water and slowly
increased the pressure on the water pipe with an air pump. He tested two of the valves in
both the “open” and the “closed” positions. According to his tests, the valves failed at the
13,000 and 15,000 psi range by “an infinitesimal leak” of water escaping from the valve.
Meadows argues that the District Court abused its discretion in precluding
Sokalski’s testimony under Fed. R. Evid. 702 and Daubert. Rule 702 has three
requirements: (1) the proffered witness must be an expert, i.e., must be qualified; (2) the
expert must testify about matters requiring scientific, technical or specialized knowledge,
i.e., must be reliable; and (3) the expert’s testimony must assist the trier of fact, i.e., must
be fit. See Pineda, 520 F.3d at 244; In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 741-
42 (3d Cir. 1994).
First, to qualify as an expert under the rule, under our liberal standard, a witness
must possess sufficient qualifications in the form of knowledge, skills and training.
Pineda, 520 F.3d at 244, citing In re Paoli, 35 F.3d at 741. The District Court found that
Sokalski has sufficient qualifications as a professional engineer to testify as an
engineering expert under Rule 702 and the parties do not contest this finding.
The second requirement is that of reliability. According to Rule 702, “an expert’s
testimony is admissible so long as the process or technique the expert used in formulating
the opinion is reliable. Pineda, 520 F.3d at 247, citing Daubert, 509 U.S. at 589. While a
15
litigant must make more than a prima facie showing that his expert's methodology is
reliable, we have cautioned that “[t]he evidentiary requirement of reliability is lower than
the merits standard of correctness.” Id. at 248. The admissibility decision must focus on
the expert’s methods and reasoning, and credibility decisions should not be considered
until after admissibility has been determined. Id., citing In re Paoli, 35 F.3d at 744. The
language of Rule 702 requiring the expert to testify to scientific knowledge means that the
expert's opinion must be based on the “methods and procedures of science” rather than on
“subjective belief or unsupported speculation”; the expert must have “good grounds” for
his or her belief. In re Paoli, 35 F.3d at 742, citing Daubert, 509 U.S. at 589. In sum,
Daubert holds that an inquiry into the reliability of scientific evidence under Rule 702
requires a determination as to its scientific validity. Id., citing Daubert, 509 F.3d at 589
n.9.
A trial court may consider several factors in evaluating whether a methodology is
reliable, including but not limited to: (1) whether a method consists of a testable
hypothesis; (2) whether the method has been subject to peer review; (3) the known or
potential rate of error, (4) the existence and maintenance of standards controlling the
technique’s operation; (5) whether the method is generally accepted; (6) the relationship
of the technique to methods which have been established to be reliable; (7) the
qualifications of the expert witness testifying based on the methodology; and (8) the non-
judicial uses to which the method has been put. Pineda, 520 F.3d at 247-48 (citations
16
omitted). Additionally, in cases involving technical subjects like engineering, trial courts
may consider relevant literature, evidence of industry practice, product design and
accident history in evaluating reliability. Id. at 248, citing Milanowicz v. The Raymond
Corp., 148 F. Supp. 2d 525, 536 (D. N.J. 2001). “The inquiry envisioned by Rule 702 is . .
. a flexible one.” Id., citing Daubert, 509 U.S. at 594. The Daubert Court noted that the
District Court’s focus “must be solely on principles and methodology, not on the
conclusions that they generate.” 509 U.S. at 595. However, the Supreme Court has held
that “nothing in either Daubert or the Federal Rules of Evidence requires a district court
to admit opinion evidence that is connected to existing data only by the ipse dixit of the
expert. A court may conclude that there is simply too great an analytical gap between the
data and the opinion proffered.” General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997)
(citations omitted).
Appellants assert that the District Court abused its discretion by, in effect, holding
the expert to a higher standard of admissibility than required under our case law.
Specifically, appellants contend that because Sokalski’s testimony concluding that
excessive pressure caused hydraulic system failure was based on generally accepted
principles of basic physics (recognized since the time of Sir Isaac Newton), it should have
been deemed reliable. Appellants note that this Court affirmed the decision of a District
Court not to exclude testimony based in part upon general engineering principles. Stecyk
v. Bell Helicopter Textron, Inc., 1998 WL 599256, at *3 (E.D. Pa. Sept. 8, 1998), aff’d
17
Stecyk v. Bell Helicopter Textron, Inc., 295 F.3d 408, 412 (3d Cir. 2002). In Stecyk,
defendant General Motors argued that plaintiffs’ expert utilized general engineering
principles to address leakage in the allegedly defective seal without any actual proof of a
defect. Stecyk, 1998 WL 599256, at *7. In addition to general engineering principles,
however, the expert supported his theory with substantial physical and reliable
documentary evidence. Thus, the Court allowed the testimony because the expert
supplemented his conclusions based on general engineering principles with reliable
methodology. Id. at *8.
In this case, as the District Court points out, Sokalski’s methodology was not
reliable. Sokalski did not attempt to replicate the conditions in the longwall shield at the
time of the accident; instead, he tested the valves without the hoses or connectors and
slowly increased pressure. Sokalski did not examine the specific shield that Meadows
was working on at the time of the accident because it was returned to service in the Mine
so he could not say definitively whether the shield contained a check valve. Further, there
was no reference to material, publication or literature describing the failure scenario he
presented, no evidence that his methodology was subjected to peer review or that it is
generally accepted, no outside documentary evidence, aside from his own report,
supporting his conclusions, no evidence concerning any known or potential error rates in
his testing, and no control standards. Finally, Sokalski conceded that his pressure tests
did not replicate the accident as he hypothesized that it had occurred because he tested the
18
valve by increasing the pressure slowly using a pump instead of generating the dynamic
spike he conceded occurred at the time of the accident; also his tests did not replicate the
assembly of the hoses, connectors and Stecko block valve that existed in the mine because
he did not use any hoses or connectors in his tests. Moreover, he did not research the
maximum burst pressure of the hoses or connectors or otherwise test them with or without
a check valve. The District Court noted that he speculated that had he used hoses and
created a dynamic spike in pressure like the one he opines occurred in the accident the
valve would have separated before the hoses would have blown. As the District Court
noted, the expert’s own testing did not support his hypothesis.3 Thus it was not the
“general physics principles” with which the District Court took issue, but rather the
method by which Sokalski applied the principles to the facts of Meadows’ accident.
Here, the analytical gap between the data and the opinion proffered is too great and is
connected only by the ipse dixit of the expert, not by any evidence. General Elec. Co.,
522 U.S. at 146. Thus, the District Court properly excluded Sokalski’s testimony because
it failed to meet the reliability standard.
3
As appellant correctly noted, testing need only be reasonably similar to the actual
events. Substantial similarity does not require perfect identity between actual and
experimental conditions. Stecyk, 295 F.3d at 412. Experimental evidence may be
admitted even if conditions do not perfectly correspond to the conditions at issue in
litigation; dissimilarities may affect the weight of the evidence, but not its admissibility.
Id., citing Glick v. White Motor Co., 458 F.2d 1287, 1294 (3d Cir. 1972); Ramseyer v.
Gen. Motors Corp., 417 F.2d 859, 864 (8th Cir. 1969). A ruling on substantial similarity
is committed to the sound discretion of the trial judge. Id. Here, based on the record, it
was not an abuse of discretion for the District Court to find that the testing was not
substantially similar to the incident.
19
The third element under Rule 702, namely, whether the expert testimony would
assist the trier of fact, “goes primarily to relevance.” Lauria v. Amtrak, 145 F.3d 593,
599 (3d Cir. 1998), quoting Daubert, 509 U.S. at 591. The expert’s testimony must “fit”
under the facts of the case so that “it will aid the jury in resolving a factual dispute.” Id.
The standard for the factor is not high; it is met when there is a clear “fit” connecting the
issue in the case with the expert’s opinion that will aid the jury in determining an issue in
the case. Lauria, 145 F.3d at 600, quoting Paoli, 35 F.3d at 745. “Rule 702's
‘helpfulness' standard requires a valid scientific connection to the pertinent inquiry as a
precondition to admissibility.” Id., citing Daubert, 509 U.S. 591-92. In other words,
expert testimony based on assumptions lacking factual foundation in the record is
properly excluded. See Stecyk, 295 F.3d at 414.
Appellants assert that the District Court wrongly rejected Sokalski’s opinion that
the accident was caused by Anchor’s failure to install a check valve on Shield # 45.
Sokalski testified that the original manufacturer’s specifications and Anchor’s schematics
indicated that a check valve was to be installed in order to allow the hydraulic fluid to
flow back into the system to a relief valve if the pressure on the base lift jack exceeded
acceptable limits. Sokalski testified that he examined the drawings done by Anchor and
observed that no check valves were indicated on Anchor’s schematics, but Groff’s
uncontroverted testimony established that the diagram Sokalski relied upon represented a
layout of the location of the hoses in the hydraulic system and that the original schematic
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by Meco-Dowty contains all of the component parts, including the check valves.
Moreover, the District Court found that, as Anchor ordered 50 check valves for the 39
machines they refurbished for the Mine and as Sokalski admitted that he did not know
first-hand whether a check valve was installed in the shield at issue because he did not
inspect it, Sokalski’s testimony regarding the absence of the check valve did not fit with
the otherwise uncontroverted evidence before the Court.
Additionally, there was no “fit” between Sokalski’s testing of the Stecko valve and
the facts. As previously noted, the testing did not replicate the hose assembly and he did
not subject the valves to the dynamic pressure spike he alleges occurred. Neither did the
tests he conducted on the Stecko valve duplicate the results that occurred in the mine, as
no valve separated in these tests - a small amount of water leaked instead - and there was
no evidence of any ovalling or indentation on the ball portion of the valve. The District
Court correctly noted that “[g]iven the lack of resemblance Sokalski’s tests have to the
events in the mine, it is difficult to say how, if at all, these tests could assist the jury in
determining what caused the accident.”
Appellants also argue that the District Court made a “de facto Summary Judgment”
decision on whether the longwall shield on which Meadows was working was equipped
with a base lift cylinder. Sokalski’s theory was that the “spike” in pressure was generated
by the base lift jack/cylinder portion of the shield because the ram bar was in the “down”
position. However, the evidence shows that when Shield # 45 was delivered to Anchor it
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did not contain a base lift ram bar or a base lift jack housing. According to Anchor’s
records, Anchor did not put in a new base lift ram bar or a new base lift housing during its
repairs and refurbishment of Shield # 45. Testimony by an inspector present at the Mine
on the date of the incident indicates that the shield Meadows was working on at the time
of the accident did not contain a base lift jack. No evidence was presented that the Mine
supplied or paid for a new base lift jack. Additionally, no evidence was presented to
contradict that the shield did not require a base lift jack to function.
The only evidence that appellants point to in order to prove the existence of a base
lift cylinder in Shield # 45 was the equivocal deposition testimony of Groff that he
thought that the base lift ram bar would have been replaced before the longwall shield
was sent back to the Mine, not that he knew that it was replaced on Shield # 45. Thus,
Sokalski’s opinion, which depended on the existence of a base lift jack on Shield # 45 to
cause the pressure increase, lacked a factual foundation in the record to satisfy the fit
requirement and was properly excluded by the District Court. See Stecyk, 295 F.3d at
414.
Appellants argue that a factual dispute existed as to whether a base lift jack was
attached to Shield # 45 because Anchor’s paperwork was not correct or that a shield other
than Shield # 45 was involved in the accident. However, as the District Court properly
noted, appellants produced no evidence at the Daubert hearing that the paperwork was
incorrect or that the incorrect shield had been identified in discovery. The photograph
22
that appellants allege supports that a base lift jack was on Shield # 45 at best suggests that
the incorrect shield had been identified. However, as Anchor only refurbished 39 of the
189 shields in the Mine repair project, Meadows would have had to also identify that the
malfunctioned shield was refurbished by Anchor because it would have been possible that
Anchor did not repair the relevant shield if it was not Shield # 45. Thus, if Shield # 45
was correctly identified, it did not have a base lift jack so it could not have malfunctioned
in the way that Sokalski opined caused the accident. If Shield # 45 was not correctly
identified as the mine shield at issue, no evidence existed that this unidentified shield was
one that Anchor repaired.
For the foregoing reasons, we find that the District Court did not abuse its
discretion in excluding the testimony of appellants’ expert witness. Sokalski’s testimony
failed to meet the reliability and fit requirements for admitting expert testimony and was
therefore properly excluded under both, although either would have been sufficient.
C. Dismissal of System Stecko
Appellants’ challenge of the District Court’s sua sponte grant of summary
judgment in favor of third-party defendant Stecko is moot. On January 5, 2007, the
District Court sua sponte granted summary judgment for Stecko on Anchor’s contribution
claims against Stecko. Anchor did not oppose the summary judgment, as its expert had
found no manufacturing defects in the Stecko valve components.4 Anchor does not now
4
Stecko has filed an unopposed motion to file a surreply brief. That motion is
granted.
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appeal the grant of summary judgment in favor of Stecko.
Appellants argue, as they did before the District Court, that because their expert
found a defect in the Stecko valve there was a genuine issue of material fact precluding
the dismissal of Stecko because the jury could find that the Stecko valve was defective
and caused the failure resulting in Meadows’ injury. Appellants are here seeking to admit
evidence against a party they did not sue in support of a claim abandoned by the party
who raised it. Pursuant to Federal Rule of Civil Procedure 14, a plaintiff cannot recover
against a third-party defendant unless the plaintiff amends his complaint and files a direct
action against the third-party defendant. See Fed. R. Civ. P. 14(b); see also George v.
Brehm, 246 F. Supp. 242, 246 (W.D. Pa. 1965). Here, despite being given an opportunity
to do so, appellants failed to amend their complaint or to seek to amend their complaint
out of time to bring an action against Stecko under Rule 14. We therefore need not
consider whether the District Court should have taken Sokalski’s testimony into account
in granting summary judgment for Stecko against Anchor. Because we affirmed the
Court’s exclusion of Sokalski’s testimony and appellants have not filed a claim against
Stecko or amended their complaint to bring an action against Stecko, the issue is moot.
For the foregoing reasons, we affirm the judgment of the District Court in its
entirety.
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